Is an Agreement to Extend Prescription in a Contract of Carriage of Goods by Sea Enforceable?

Abstract

According to the Supreme Court case no. 2888/2549, the Court interpreted the declaration of the defendant’s intention that the letter made by the defendant to extend the time limit for three months until 25 June 2554 meant that the defendant had given the consent that he would not raise the period of prescription against the plaintiff. This consent was effective according to section 47 of the Carriage of Goods by Sea Act B.E. 2534. The writer is of the opinion that the interpretation of the declaration of the defendant’s intention approach could be debatable.  Assuming that the defendant had agreed to extend the period of prescription, the Supreme Court decision would be unchanged by applying one or two suggested alternative approaches.  The first approach is to apply the principle of restrictive interpretation.  Section 193/11 of the Civil and Commercial Code can be construed that the agreement to extend the period of prescription is prohibited only when it is done at the time the contract is concluded.  In this case, the defendant had agreed to extend the period of prescription after the contract had been concluded; therefore, the agreement was not prohibited and was effective. The second approach is to apply the principle of interpretation i.e. argumentum a fortiori.  Section 47 of the Thai COGSA B.E. 2534, allowing the party to make an agreement not to raise the period of prescription, gives the effect that there is no prescription applied to the case.  Thus, the agreement to extend the period of prescription for a certain period of time, such as only three months like in this case, is definitely effective.